AS TO THE ADMISSIBILITY OF
Application No. 28555/95
by Madeline TOGHER
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 16 April 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 February 1995
by Madeline TOGHER against the United Kingdom and registered on
18 September 1995 under file No. 28555/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations of the Government dated 2 July 1997, the records
concerning the applicant's detention received from the Government
on 5 December 1997 and the observations of the applicant in reply
received on 8 January 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant was born in 1972 and is a British citizen residing
in the United Kingdom. She is represented before the Commission by
Camilla Loewe, a solicitor practising in London. The facts as submitted
by the parties may be summarised as follows.
A. Particular circumstances of the case
On 1 January 1995 the applicant gave birth to a daughter and
commenced breast-feeding. On 11 January 1995 she was arrested on
suspicion of knowingly being concerned in the fraudulent evasion of the
prohibition on the importation of cocaine contrary to section 170(2)
of the Customs and Excise Management Act 1979. Customs and Excise had
seised 370 kilogrammes of cocaine which had an estimated street value
of £37 million and the applicant was suspected as having played a role
in its importation. Others (including her husband who was suspected as
being the central figure in the importation) were also arrested.
The applicant arrived at Battersea police station at 18.05 on
11 January 1995 and her parents (who took charge of the applicant's
child) accompanied her. She was examined by the police duty medical
examiner who concluded that, although the applicant was 22 years old,
her immature and fragile condition made it necessary for her to be
interviewed in the presence of an appropriate adult. He also advised
against the applicant being separated from her child whom she was
breast-feeding and advised that, if the applicant was charged and
remanded in custody, she should be placed in the Mother and Baby unit
at Holloway prison. The records of her detention in that station
indicate that the applicant had contact with a solicitor approximately
50 minutes after her arrival and subsequently at least four times by
telephone and five times in consultation. Her parents visited her twice
at the station and her father attended interviews with the applicant
on 12 January 1995. "Prisoner's and Child's welfare needs being dealt
with" is noted in the records at 18.15 on 12 January 1995. It is also
recorded that in the morning of 12 and 13 January 1995 the applicant
was allowed out of her cell to wash. In the evening of 12 January 1995
the applicant was charged with conspiracy to import cocaine contrary
to section 170(2) Customs and Excise Management Act 1979. Police bail
was refused.
On 13 January 1995 the applicant was brought before the
Magistrates' Court together with her husband and the other co-accused
and all accused were remanded in custody, bail having been refused. The
police completed a transfer of custody form on the same day noting that
due to the large amount of cocaine that had been seised and therefore
the serious nature of the charge, it was anticipated that an escape
attempt could be made. On reception at Holloway prison, and in
accordance with the section 36 of the Prison Service Security Manual,
the applicant was given provisional Category A security status. The
applicant's parents brought her child to her on 14 and 15 January 1995
and on each occasion the visit with the applicant lasted approximately
fifteen minutes. Social services then placed the child with foster
parents (the baby could still be brought by social services for visits
to the prison) and the applicant's parents returned to Scotland.
On 16 January 1995 the applicant's solicitor was informed that
a decision on the applicant's status would be taken by a committee of
the Custody Group of the Home Office Prison Department later that
afternoon and that representations on the applicant's behalf could be
made. The representations submitted challenged the appropriateness of
the Category A status and referred, inter alia, to the likely harm to
the applicant and the baby by the consequent separation.
On 18 January 1995 the Custody Group confirmed the applicant's
Category A status pursuant to the Prison Rules 1964 and the Prison
Service Security Manual. By letter dated 18 January 1995 that Group
notified the applicant's solicitor of that confirmation and pointed
out, in reaching its decision, that the points raised by the
applicant's solicitor had been considered but, given the serious nature
of the charges against the applicant, Category A status was considered
appropriate. In response to a question of the applicant's solicitors,
the latter were informed by "the prison" by telephone later that day
that there are only two categories of woman prisoner - female prisoners
and Category A prisoners - and that the applicant would have access to
the Mother and Baby unit only if the Home Office decided to de-
categorise the applicant.
On 19 January 1995 the applicant applied to the High Court for
leave to apply for judicial review of the decision of the Custody Group
on the express basis that her categorisation meant that she had no
access to the Mother and Baby unit and entailed her separation from her
baby. The applicant cited, inter alia, the power of the Secretary of
State under rule 9(3) Prison Rules 1964 and Articles 3 and 8 of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention"). When counsel for the Secretary of State
stated that the letter of 18 January 1995 did not represent the reasons
for the decision on the applicant's categorisation, the court adjourned
the matter pending receipt in writing of the full reasons for that
decision from the Secretary of State.
In a letter dated 20 January 1995 the Secretary of State set out
those reasons. He noted that account had been taken of the seriousness
of the charge, the existence of evidence which implicated the applicant
with the offence charged, the risk of escape, the alleged prominent
role of the applicant's husband in the alleged crime and of certain
information which led the Secretary of State to believe that the
applicant's husband had past dealings in the supply of cocaine and had
numerous criminal associates. The letter continued as follows:
"On the information available, it was concluded that organisational role in the activities of a well resourced criminal organisation, held a position of trust in that organisation, has access to considerable resources and associates capable of both mounting an armed escape attempt and violently resisting any attempt at re-arrest. In reaching this conclusion, account was also taken of the fact that on conviction, face a lengthy prison sentence, possibly one of life imprisonment. ... In addition, account was taken of the fact that this had to be balanced against all the other factors in her case, as stated above, which outweighed that consideration. On the totality of information available, it was decided that 1995 the High Court refused the judicial review application. A renewed application to the Court of Appeal for leave to apply for judicial review was made on 25 January 1995 and this was refused on 1 February 1995. The Court of Appeal found, inter alia, that the categorisation procedure had been complied with and that it was sufficient for the Secretary of State to rely on the risk inherent in the surrounding circumstances, that the separation did not amount to treatment of a sufficiently severe level to constitute treatment contrary to Article 3 of the Convention and that the Secretary of State had correctly balanced the public interest against the right to respect for family life as required by Article 8 of the Convention. On, inter alia, 20 and 27 January, 10 February, 10 March and 7 April 1995 the applicant's continued detention was considered and bail was refused by the Magistrates' Court. In a letter dated 24 February 1995 the Head of Custody in Holloway outlined the reasons why a Category A prisoner was unsuitable for the Mother and Baby unit and confirmed that the applicant had not made an application for Sunday visits (all day) although it was open to her to do so - such an application would be considered on its merits but security considerations would remain paramount. Three letters dated 9 and 14 March 1995 from the Director General's Office of the Prison Service, in reply to letters from members of parliament in relation to the applicant, repeated the contents of the Head of Custody's letter. A handwritten note of Governor 5 in Holloway prison dated 12 April 1995 (recording a telephone call to the prison service) noted that there was no trace of an application from the applicant for Sunday family visits. On 12 April 1995 the applicant was granted bail by Brighton Magistrates' Court and the Crown Court rejected an appeal that same day. The applicant, who was on the way back to Holloway prison when bail was granted, was retained in a cell in the prison for three and half hours after which she was released and re-arrested on a second charge (knowingly being concerned in the fraudulent evasion of a prohibition on the importation of cocaine contrary to section 170(2) of the Customs and Excise Management Act 1979) outside the prison gates by customs officers. She was driven to Portsmouth police station. She arrived at 23.40 and remained there until 10.10 hours on 16 April 1995. The records submitted indicate that, apart from the regular surveillance of the police officers and other contact outside of her cell, the applicant was visited in her cell by her solicitor (6 times), a police doctor, her mother, her father, a psychiatrist and by a police inspector (4 times). At 11.15 on 14 April 1995 the applicant was formally charged with this second offence and police bail was refused. On 15 April the applicant was refused bail and was remanded in custody by a specially convened Magistrates' Court (it being the Easter Bank Holiday Weekend). She was returned to Holloway prison. On 20 April 1995 the applicant was again granted bail and released. Subsequently, a third charge was added and the second charge was withdrawn. The applicant was acquitted of the first charge on 19 March 1997 and the third charge is not being pursued. The applicant was re-united with her daughter on her release in April 1995 and has not been detained since then. On 14 August 1995 the Prison Ombudsman rejected the applicant's complaint about the necessity of her categorisation in Holloway prison. B. Relevant domestic law and practice Categorisation of prisoners Section 47 of the Prison Act 1952 allows the Secretary of State to make rules for the management of prisons and other penal institutions and the Prison Rules 1964 were made pursuant to those powers. Rule 3(1) provides: "Prisoners shall be classified in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by Rule 1 of these Rules." Category A prisoners are defined as those whose escape would be highly dangerous to the public, or to the police, or to the security of the state, no matter how unlikely that escape might be and for whom the aim must be to make escape impossible. Guidance for prison staff as to the categorisation procedure is set out in section 36 of the Prison Service Security Manual. On reception of a prisoner prison staff are required to identify those prisoners charged with listed serious offences. They must then contact the police officer in charge of the case to obtain information about the offence with which the prisoner is charged together with the prisoner's dangerousness and escape potential. Having obtained this information, the staff are required to report to Prison Service Headquarters those prisoners charged with the aforesaid offences which meet any one or more of a list of specified criteria set out section 36.5 which criteria include an indication by the arresting authorities that an offender charged with serious drug importation or production offences may be a senior member of a well resourced criminal gang prepared to use firearms in an escape attempt. A decision is then taken on whether the prisoner will be provisionally categorised as category A which categorisation is then subject to confirmation by the Custody Group of the Home Office Prison Department. Remedies as regards treatment and conditions of detention Both the police and prison service owe a common law duty of care to those in their custody to take reasonable care to protect them from foreseeable risks to their health and safety. Intolerable conditions of detention were recognised as being a proper basis for judicial review by the House of Lords in R v. Deputy Governor of Parkhurst Ex Parte Hague [1992] 1 A.C. 58. The House of Lords also recognised that prisoners had available an action in tort for damages against the authorities for damages for negligence where the intolerable conditions cause him to suffer injury (psychiatric or physical), for assault and for misfeasance in the exercise of a public office. Moreover, any prisoner dissatisfied with a decision taken in connection with the conditions of his imprisonment may use the "Request and Complaints" system which was introduced in 1990 and through which prisoners are encouraged to attempt to resolve complaints informally. However, if the complaint cannot be so dealt with the prisoner may make a formal application which application will be recorded and a senior member of staff will discuss the matter with the prisoner usually within 2 days. In the event that the prisoner remains dissatisfied, he then completes a request/complaint which is considered by the Governor and replied to usually within 7 days. A right of appeal lies to the Area Manager of the Prison Service, from which an application for judicial review can be made. Since October 1994, prisoners can also complain to the Prisons Ombudsman. Female prisoners and Mother and Baby units Rule 9(3) of the Prison Rules 1964 provides: "The Secretary of State may, subject to any conditions he thinks fit, permit a woman prisoner to have her baby with her in prison, and everything necessary for the baby's maintenance and care may be provided there." Generally speaking, from an average female prison population of 2000 prisoners, 4-5 of such prisoners are Category A prisoners. The prison service maintains Mother and Baby units in 4 prisons. At the material time, the Holloway Mother and Baby unit had space for 13 mothers and babies. The booklet published by the prison service describing the Mother and Baby units points out that one of the aims of the units is to provide an environment with facilities conducive to proper child care in which the development of babies is actively fostered (in terms of, inter alia, locomotive, social, emotional, speech and language and cognitive skills). In the context of the aims and objectives of the units, it is also noted that the needs of the babies within the units must, unless there are very strong reasons of security or control, be put first. The other aim is described in the booklet as the exercise and development of the parenting skills of the female prisoner, many of which mothers are young and have been the subjects of abuse. The criteria for admission to the unit include the age of the baby and whether there is an expectation that the mother will look after the baby after release. Accordingly, the units are open and subject to a minimum of security and supervision (therefore limited prison staff). Each mother has a single cell which is never locked, all mothers share communal facilities and all mothers move around freely in the unit. There is unsupervised access to the grounds of the prison during the day and to a roof garden at all times. The Multi-Disciplinary Team of the unit advises the Governor on admission applications and among the criteria to be considered is the increasing unsuitability of the unit as a child grows older, the availability and suitability of alternative care for the child and whether the mother is breast-feeding. COMPLAINTS 1. The applicant complains under Article 3 of the Convention in relation to her treatment in detention in Battersea and Portsmouth police stations and about the conditions in those stations. 2. The applicant complains about the enforced separation from her child which was consequent on her categorisation as a Category A security prisoner. She complains that in the circumstances of her detention it constituted an unjustifiable interference with her family life and treatment contrary to Article 3 of the Convention. 2. The applicant further complains under Article 5 para. 4 that she was denied an opportunity to take proceedings by which the lawfulness of her detention could be decided speedily by a court. She also invokes Article 5 para. 5 of the Convention in this respect. 4. The applicant also complains under Article 6 para. 2 of the Convention submitting that the decision as to her Category A status violated her right to be presumed innocent until proven guilty of the charges against her. 5. Finally, the applicant invokes, in her observations, Article 13 of the Convention submitting that she had no effective remedy in relation to her separation from her baby. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 6 February 1995 and was registered on 18 September 1995. On 26 February 1997 the Commission decided to communicate the application and request the parties' observations on the admissibility and merits of the applicant's complaints under Articles 8 and 3 of the Convention in relation to the applicant's separation from her baby. The observations of the Government were received on 9 July 1997, the records concerning the applicant's detention were received from the Government on 5 December 1997 and the observations of the applicant in reply were received on 8 January 1998. On 9 July 1997 the Commission decided to grant the applicant legal aid. THE LAW 1. The applicant complains that the conditions of, and her treatment in, Battersea and Portsmouth police stations amounted to treatment contrary to Article 3 (Art. 3) of the Convention. She refers to bad conditions, ill-treatment and a lack of washing facilities leading to an infection in Battersea police station and to bad conditions in Portsmouth police station. Article 3 (Art. 3) of the Convention reads as follows: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The Government submit that the applicant has not exhausted domestic remedies since she did not take actions in tort against the police for damages in negligence, for damages for assault or for misfeasance in the exercise of a public office. In any event, the Government argue that these allegations are unsubstantiated - the Government submit a copy of the police records covering her detention in both police stations and contest, with reference to those records, the applicant's allegations. The Commission notes that the applicant has not repeated her allegations in her observations. Although a small number of entries in the copy records submitted are not legible, the applicant has not commented in any way on those records or on the Government's observations in those respects. The records indicate that in Battersea police station, and apart from the regular surveillance of the police officers, the applicant had regular contact by telephone and in person with a solicitor and with her parents. She was also seen at least twice by the police medical officer. It is further noted that she left her cell to wash on both mornings she was detained there. In Portsmouth Station it is recorded that, apart from the regular surveillance of the police officers and other contact outside of her cell, the applicant was visited in her cell on numerous occasions by her solicitor and by a police inspector and also by a police doctor, her mother, her father and a psychiatrist. Despite such contact, there is no evidence of any contemporaneous complaint made by the applicant as regards her detention in either of those police stations or of any subsequent complaints made by her to the police authorities. In such circumstances, the Commission considers, whether or not the applicant had an effective domestic remedy to exhaust in these respects, that her allegations as regards her treatment during and the conditions of her detention in the relevant police stations are unsubstantiated and, as such, manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicant also complains about the physical and psychological effects on her of her separation from her baby which was consequent on her being accorded Category A security status in Holloway prison. She considers that separation, in the circumstances of her pre- trial detention, constituted an unjustifiable interference with her family life and amounted to treatment contrary to Article 3 (Art. 3) of the Convention. The circumstances to which she refers are reduced association with other prisoners (she alleges that, at one stage, she had no such contact for eight days) and confinement to her cell for most of the day. Article 3 (Art. 3) is cited above and the Commission has also considered this complaint under Article 8 (Art. 8) which latter Article, insofar as relevant, reads as follows: "1. Everyone has the right to respect for his ... family life, ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, ... for the prevention of disorder or crime, ... or for the protection of the rights and freedoms of others." (a) Article 26 (Art. 26) of the Convention The Government argue that the applicant's allegations, as regards lack of association with other prisoners (including the eight day period to which she refers) and the amount of time spent in her cell, are inadmissible on grounds of non-exhaustion. They point out that the applicant failed, inter alia, to make any contemporary complaint about the conditions of detention in Holloway Prison, to utilise the "Request and Complaints" procedure which could have rectified any well-founded complaint within a matter of days and to complain to the Prison Ombudsman in those respects. In any event, the Government contest those allegations of the applicant. The Government have provided a copy of the applicant's prison records and submit that the applicant was for most days out of her cell for almost five hours each day and she ate her meals outside of her cell. She was never locked in her cell for 24 hours although it is accepted that on some days she was allowed out of her cell for only one hour as a result of the temporary unavailability of prison officers who, in accordance with Category A requirements, had to "shadow" the applicant when she left her cell. As well as contact with other prisoners, she had frequent contact with prison officers and with the Governor grades whom she saw every day. Members of the Board of Visitors were in prison every day and would have seen regularly the applicant as would the prison medical officers and the Chaplain's staff. The applicant had access to the telephone of which she made frequent use. The Commission, in the first place, notes that the applicant's complaints under Articles 3 and 8 (Art. 3, 8) relate to her separation from her baby consequent on her Category A status and her allegations as regards the conditions of detention form part of her submissions in that respect. Secondly, and in any event, the Commission considers that the applicant's submissions as regards those conditions of detention do not demonstrate treatment outside of the prescribed Category A security conditions and procedures - the Commission notes that the allegations made in her initial application were vague; she does not dispute the Government's detailed responses which responses are not inconsistent with the records submitted. Accordingly, the Commission considers that the applicant's challenge to the Category A security status itself by way of an application for leave to apply for judicial review was sufficient to comply with the requirements as to exhaustion of domestic remedies contained in Article 26 (Art. 26) of the Convention as regards the within complaints of the applicant. (b) Merits of the complaints relating to the applicant's separation from her baby under Articles 3 and 8 (Art. 3, 8) of the Convention The Government make a number of preliminary factual observations. The Government submit that the applicant accepted that her categorisation solely determined whether her baby remained with her because the only action taken by her was the judicial review proceedings and because she did not request special arrangements to accommodate her and her baby. Secondly, the Government point out that on 13 January 1995 the prison service was faced for the first time ever with a Category A female prisoner who already had a baby. They argue that the nature of the Mother and Baby units is completely incompatible with the security requirements of Category A status because those units are designed to be open and have a relaxed security regime which is for the benefit both of the baby (by providing as normal an environment as possible in accordance with child care expertise) and of the mother (by encouraging parenting skills). The view was rightly taken, according to the Government, that it would be inappropriate for the baby to locate the baby in an ordinary cell in Category A circumstances with its mother. Therefore there was nothing, according to the Government, which could have been done immediately to accommodate the baby in a suitable environment given the applicant's Category A status. On one occasion in the past, a Category A female prisoner was pregnant when first detained and there was sufficient time before the birth to make special arrangements (including structural changes and special procedural arrangements) to allow that mother to stay "within" the Mother and Baby unit. Thirdly, and insofar as part of her complaint about separation is based on the loss of the advantages of breast-feeding, that loss had crystallised on 13 January 1995 and it cannot be said that the prison authorities were obliged to have had immediately in place a dedicated regime for a Category A mother with a baby. In any event, the advantages of breast-feeding accrue during the first days of life and the baby had already been breast-fed for 12 days. Fourthly, the Government submit that the applicant did not take advantage of the possibility of full contact visits which take place 2-3 times per week and last 45 minutes and that there is no record that she applied for all-day family visits which take place every second Sunday. It is also noted that the applicant did not request special arrangements in the first days of her detention to express milk so that the baby could have been fed remotely (such facilities having been provided in other cases). In such circumstances, the Government submit that the applicant's complaints do not disclose circumstances reaching the level of severity which would fall within the scope of Article 3 (Art. 3) (Eur. Court HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 162). They also specify that the segregation of persons in detention for reasons of security does not, of itself, breach Article 3 (Art. 3) (see, inter alia, Nos. 7572/76, 7586/76 and 7587/76, Dec. 8.7.78, D.R. 14, p. 64 and No. 8158/78, Dec. 10.7.80, D.R. 21, p. 95). As regards Article 8 (Art. 8) of the Convention, the Government submit that even if there was a positive obligation to protect the applicant's right to respect for family life (No. 9054/80, Dec. 8.10.82, D.R. 30, p. 113), it would only be in exceptional circumstances that the balance of competing interests would weigh in favour of a prisoner (No. 18632/91, Dec. 12.9.92, unpublished). In order for the circumstances to be exceptional, the applicant must have demonstrated that there was an obvious alternative practicable course available to the prison authorities to avoid the applicant's separation from her baby. Since at no time the applicant made any such suggestion; in light of the careful consideration of the applicant's Category A status; since the prison service was unable to provide facilities to enable the applicant to have her baby with her while maintaining security; and in view of the visiting options available to the applicant, the prison service complied with any positive obligation under Article 8 para. 1 (Art. 8-1) of the Convention. There was, therefore, no interference for the purpose of Article 8 para. 1 (Art. 8-1) of the Convention Alternatively, if there was such an interference, the Government submit that it was justified. The applicant's remand in custody and detention was lawful. The objectives sought to be protected by the applicant's Category A status which necessitated her separation from her baby were the protection of public safety and the prevention of disorder and crime (the perceived risk of escape with consequent violence and interruption of the prosecution of the case) together with the protection of the rights and freedoms of others, particularly the baby. Moreover, the circumstances of the applicant's detention were "necessary" namely, a proportionate response to a pressing social need. The prison authorities were bound to form a view about the risks involved in detention and determine the appropriate regime of detention in the light of those risks. Accordingly, and bearing in mind the State's margin of appreciation, the attribution of Category A status with the consequent separation of the applicant from her baby was a proportionate response to the circumstances presented on her arrest and during her subsequent detention. In such circumstances, the Government argue that the applicant's complaints under Articles 3 and 8 (Art. 3, 8) as regards her separation from her baby are inadmissible as manifestly ill-founded or, in the alternative, do not disclose a violation of the Convention. The applicant, in the first place, refers to the crucial importance of the bond between a mother and a new born baby for both the mother and the baby; to the necessity for constant residential contact to preserve this; to her particularly vulnerable and emotional state when separated (she had recently given birth to her first child, she was physically frail and she had a history of depression); her separation provoked a deep sense of loss; the obligatory cessation of breast-feeding led to the applicant's physical discomfort, her mental distress and to the loss of the physical benefits of breast-feeding which accrue to a nursing mother; the cessation of breast-feeding also impacted negatively on the mother and child bonding process; and the physical effects on the child of the separation (the loss of the benefits of breast-feeding including reduced risk of mortality, reduced chance of infection, enhanced immunity, increased intelligence and reduced risk of auto-immune disease such as diabetes) together with the emotional effects on the child were a source of distress to the applicant. The applicant responds to certain of the Government's preliminary remarks as follows. As regards the possibilities for contact with her child, the applicant points out that at the beginning "she was informed" that no real access or contact could be established as long as she remained Category A - the obvious route therefore was to challenge her Category A status. Bearing in mind her inexperience of the prison system, the rejection of her judicial review application, her weak physical and psychological condition following a difficult birth and following her separation from her child at an early stage, the applicant had "no reason to doubt" the advice she had been given. When judicial review was unsuccessful, she applied for Sunday family visits and this was refused on security grounds. In any event, the possibility of sporadic contact has no bearing on a complaint relating to the need for full access to preserve a mother-child bond. It is true that the applicant did not request special facilities but she understood that the position was simply that as long as she remained Category A she would not have her child with her - she was not aware of the possibility to "request special facilities" (either to remain with her child or to express milk). She points out that no attempt was made to inform her of these options despite her obvious concern highlighted by her challenges to her categorisation made on the express basis that she saw her Category A status as a bar to her being with her child and despite her recognised vulnerable state. She adds that it would have been wholly unfeasible to express milk for an absent baby for the period of detention at issue. The applicant considers that she has exhausted domestic remedies as regards her separation from her baby by way of the judicial review proceedings. Her Category A status was the obstacle to access to her baby - this was the position expressed by the prison authorities and was inherent in the Government's defence to the judicial review proceedings. As regards Article 8 (Art. 8) of the Convention, the applicant relies on the following matters to establish either a failure to fulfil the positive obligation on the United Kingdom Government to ensure effective respect for her family life or, in the alternative, a disproportionate interference with her family life. In the first place, the applicant disputes the necessity of her security classification given the absence of any evidence of a risk of any escape attempt and her particular personal circumstances which militated against any such conclusion - she was weak emotionally and physically after the recent birth of and separation from her child and her overriding concern was for her child. Secondly, the cases upon which the Government rely can be distinguished on their facts - the McCotter case (No. 18632/91, loc. cit.) related to a transfer of a convicted terrorist to another prison in Northern Ireland to facilitate visits with two brothers who were also convicted terrorists. The X v. the United Kingdom case (No. 9054/80, loc. cit.) related to an applicant who sought visits with a man with whom she had recently become acquainted through correspondence. Her case, in contrast, relates to the crucial full access necessary to maintain the bond between a newborn baby and its mother. Thirdly, and even if "exceptional circumstances" must be shown in accordance with the McCotter case, these exist in the present case - the number of female prisoners is low and the number of female prisoners with babies is even lower; the applicant's child was just less than two weeks old when she was transferred to Holloway; the child was being breast-fed; the child was dependent on her mother and was an innocent party in the debate surrounding contact with her mother. The Government itself has acknowledged the importance of the mother-child bond by the creation of the Mother and Baby units. The applicant does not accept that it was or is up to her to demonstrate that a practical alternative course was open to the prison authorities. However, even if this is the case, she refers to the Government's own observations where they outline the accommodation made for another female prisoner who was Category A and for whom special arrangements were made to allow her to keep her baby with her. The fact that the applicant did not specifically request such special arrangements is not a valid defence in view of the positive obligation on the detaining authorities and because, in any event, she had been repeatedly told that her Category A status was a complete bar to her having her child with her. Had she been informed that residential access could have been provided for her and the baby in the near future, there is no reason to suppose that she would not have maintained her ability to lactate by expression of milk during the intervening period. Accordingly, the applicant maintains that the separation from her baby, because of and in the circumstances of her Category A detention, amounted to either a failure on the part of the Government to fulfil its positive obligation to ensure effective respect for her family life or to an unjustifiable interference with her family life in violation of Article 8 (Art. 8) and also amounted to treatment contrary to Article 3 (Art. 3) of the Convention. The Commission considers that the complaints as regards the applicant's separation from her baby as a result, and in the circumstances, of her Category A security status during her pre-trial detention in prison raise complex and serious issues under the Convention which require determination on the merits. It follows that these complaints of the applicant cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) and no other ground for declaring them inadmissible has been established. 3. The applicant further complains under Article 5 para. 4 (Art. 5-4) submitting that she was denied an opportunity to take proceedings by which the lawfulness of her detention could be decided speedily by a court. She refers to her initial detention and to her re- arrest on 12 April 1995. She also invokes Article 5 para. 5 (Art. 5-5) of the Convention in this respect. Article 5 paras. 4 and 5 (Art. 5-4, 5-5) read as follows: "4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation." The Government submit that her reference to and complaint under Article 5 para. 4 (Art. 5-4) is misconceived - following each of her arrests the applicant was taken before the Magistrates' Court and bail was considered and refused. If the applicant was dissatisfied with those decisions, she could have appealed to the Crown Court or to the High Court but she did not. If the applicant considered that she was being unlawfully detained, she could have but did not apply for a writ of habeas corpus. If she is suggesting that her arrest was unlawful in domestic terms, a remedy of false imprisonment was available to her. Accordingly, her complaint under Article 5 para. 5 (Art. 5-5) is also mis-conceived. The Commission recalls, in the first place, that the applicant was legally represented throughout her period of detention and does not complain about the level of contact with and access to that representative. She was brought before the Magistrates' Court promptly after arrest and regularly during detention. Insofar as her complaint refers to the alleged unlawfulness in domestic terms of her detention, the Commission recalls that habeas corpus proceedings together with an action for damages for false imprisonment were available to the applicant. Insofar as the applicant complains about the unlawfulness in Convention terms of her detention (Eur. Court HR, X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, p. 25, para. 57), she does not specify in what respect she considered her detention unlawful in Convention terms. Accordingly, the Commission considers that the applicant has not demonstrated that she was denied the opportunity to contest the lawfulness of her detention and that her complaint under Article 5 para. 4 (Art. 5-4) is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. Since the right to compensation under Article 5 para. 5 (Art. 5-5) presupposes a violation of one of the other paragraphs of Article 5 (Art. 5) (No. 10801/84, Dec. 3.10.88, D.R. 61, p. 62), the complaint under Article 5 para. 5 (Art. 5-5) must also be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 4. The applicant further complains under Article 6 para. 2 (Art. 6-2) of the Convention that her Category A status violated her right to be presumed innocent until proven guilty of the charges against her upon which she had yet to be tried. Article 6 para. 2 (Art. 6-2) reads as follows: "2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." The Government submit that the categorisation of a prisoner has no impact on the trial with which Article 6 para. 2 (Art. 6-2) is concerned (No. 8582/79, Stroogström v. Sweden, Dec. 11.10.82, Comm. Report 15.7.83, Appendix II)). It is simply an administrative arrangement which determines the level of security for a prisoner. The Commission recalls that the Convention is not opposed to preventative measures, Article 5 (Art. 5) of the Convention itself authorising pre-trial detention. Article 6 para. 2 (Art. 6-2) of the Convention does not in principle prevent the Contracting States from taking measures against accused persons such as house arrest or confiscation of certain property (No. 19106/91, Dec. 29.6.94, D.R. 78- B, p. 83 at p. 86). Article 6 para. 2 (Art. 6-2) does not prevent the making of orders - for example, confiscation orders - ancillary to pre- trial detention (No. 12386/86, Dec. 15.4.91, D.R. 70, p. 59). The Commission also recalls that Article 6 para. 2 (Art. 6-2) of the Convention does not prohibit treatment of an accused which implies no more than his treatment as a "suspect" (No. 8582/79, loc. cit.). The Commission notes the escape risk referred to in the custody transfer form completed by Battersea police, the procedure for according provisional security status outlined in the Prison Service Security Manual (which the Court of Appeal confirmed had been observed), the reasons given in the Secretary of State's letter of 20 January 1995 for the subsequent confirmation of her Category A status together with the findings of the Court of Appeal in the judicial review proceedings. The Commission considers that the applicant's designation as a Category A prisoner constituted a preventative security measure ancillary to pre-trial detention based on the authorities' assessment of the risk of escape arising out of the serious nature of the charge against her. This treatment of the applicant as a suspect to whom strict security measures applied due to the nature of and circumstances surrounding the charges is not, therefore, incompatible with the requirements of the presumption of innocence contained in Article 6 para. 2 (Art. 6-2) of the Convention. Accordingly, the Commission considers that this complaint of the applicant is manifestly ill-founded and inadmissible pursuant to Article 27 para. 2 (Art. 27-2) of the Convention. 5. Finally, the applicant refers, for the first time in her observations, to Article 13 (Art. 13) of the Convention submitting that she had no effective domestic remedy to challenge her separation from her baby. The Commission considers that Article 13 (Art. 13) is raised in conjunction with her complaints about her separation from her baby under Articles 3 and 8 (Art. 3, 8) of the Convention. However, the Commission also considers that this complaint has been introduced with her observations dated 7 January 1998. Accordingly, and even assuming that the six-month time-limit outlined in Article 26 (Art. 26) of the Convention began to run on 20 April 1995 (being the latest date of the relevant period of detention), this complaint was introduced outside of the afore-mentioned six-month time- limit. The complaint is, therefore, inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of the Convention. For these reasons, the Commission, unanimously, DECLARES ADMISSIBLE, without prejudging the merits, the applicant's complaints about her separation from her baby during her pre-trial detention in Holloway prison; and DECLARES INADMISSIBLE the remainder of the application. M.F. BUQUICCHIO M. PELLONPÄÄ Secretary President to the First Chamber of the First Chamber
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